967 F.3d 133
2d Cir.2020Background
- Omar Everton Dale was born in Jamaica in 1979 to unmarried parents, admitted to the U.S. as a lawful permanent resident with his mother in 1981; his father later entered separately, naturalized in 1988, and obtained an order of filiation in 1989.
- Dale never lived with his father long-term and his mother was deported in 1997 without naturalizing.
- Between 2004–2014 Dale was convicted of multiple offenses, including assault in the second degree (NYPL § 120.05(2)) in 2014.
- DHS commenced removal proceedings in 2017, alleging removability based on crimes involving moral turpitude, an aggravated-felony crime of violence, and a controlled-substance offense (the latter later withdrawn).
- Dale argued he had derived U.S. citizenship under the pre-2000 INA § 1432(a)(3) via his father's naturalization (relying on his 1989 filiation); the IJ and BIA rejected this, the BIA also denied reopening after finding the filiation order immaterial.
- The Second Circuit denied review, holding Dale's equal-protection challenge to former § 1432(a)(3) is foreclosed by Pierre v. Holder and that NYPL § 120.05(2) is a § 16(a) crime of violence (precluding remand). Judge Rakoff concurred, arguing Morales-Santana undermines Pierre but that the proper remedy would be abrogation of the mother-only exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether former INA § 1432(a)(3) (mother-only route for out-of-wedlock children) violates equal protection by discriminating against children of unwed fathers | Dale: the provision is gender-discriminatory and unconstitutional; Morales‑Santana undermines Pierre so § 1432(a)(3) must be invalidated or read to permit derivation via a father | Government/BIA: Pierre v. Holder controls; Nguyen permits paternal-acknowledgment distinctions; Morales‑Santana does not disturb Pierre | Denied — bound by Pierre; § 1432(a)(3) not invalidated by Morales‑Santana for purposes of this Circuit |
| Whether assault in the second degree under NYPL § 120.05(2) is an aggravated-felony "crime of violence" under 18 U.S.C. § 16(a) after Dimaya | Dale: Dimaya voided § 16(b), so his conviction qualifies only if it meets § 16(a) — remand to BIA requested | Government: existing precedent shows § 120.05(2) meets § 16(a) | Denied remand — Singh v. Barr controls; § 120.05(2) satisfies § 16(a) and is an aggravated-felony crime of violence |
Key Cases Cited
- Pierre v. Holder, 738 F.3d 39 (2d Cir. 2013) (upheld constitutionality of former § 1432(a)(3) under Nguyen and controlled this appeal)
- Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (U.S. 2001) (upheld paternal-acknowledgment requirement as serving important interests in biological-filial ties)
- Sessions v. Morales‑Santana, 137 S. Ct. 1678 (U.S. 2017) (invalidated gender-based physical-presence distinction; distinguished from Nguyen)
- Sessions v. Dimaya, 138 S. Ct. 1204 (U.S. 2018) (held § 16(b) residual clause void for vagueness)
- Singh v. Barr, 939 F.3d 457 (2d Cir. 2019) (held NYPL § 120.05(2) meets § 16(a) and is a crime of violence post‑Dimaya)
- Morris v. Holder, 676 F.3d 309 (2d Cir. 2012) (earlier decision treating § 120.05(2) as a § 16(b) crime of violence)
- Doscher v. Sea Port Group Sec., LLC, 832 F.3d 372 (2d Cir. 2016) (panels are bound by prior circuit precedent unless an intervening Supreme Court decision undermines it)
- Wedderburn v. I.N.S., 215 F.3d 795 (7th Cir. 2000) (consideration of alternative statutory routes to citizenship relevant to constitutional analysis)
- Grant v. U.S. Dep't of Homeland Sec., 534 F.3d 102 (2d Cir. 2008) (earlier Second Circuit decision applying Nguyen logic to § 1432(a) and related precedents)